Re East Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Bradken Consolidated v Broken Hill Pty Co Ltd [1979] HCA 15; (1978-9) 145 CLR 107

Human Rights and Equal Opportunity Commission Act 1986 s 6, 30(2), 46PO

Disability Discrimination Act 1992 s 12(1), 12(7), 13(3), 13(4)

Federal Magistrates Act 1999 s 10, 18

Federal Court of Australia Act 1976 s 19(1)

Federal Magistrates Court Rules 2001 r 13.09, 13.10

Mr D Graham QC, Solicitor General with Mrs C Kenny of Counsel

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

1. James Ernest Rainsford (the applicant) made an application under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) alleging unlawful discrimination against the State of Victoria (the respondent). The application was filed in the Federal Court on 10 May 2001. In his application he claimed unlawful discrimination had occurred pursuant to provisions of the Disability Discrimination Act 1992 (the DD Act). There is no issue taken by the respondent that the State of Victoria is the correct respondent in a claim relating to alleged conduct of the Office of the Correctional Services Commissioner.

2. A notice of termination from the Human Rights and Equal Opportunity Commission (the Commission) dated 10 April 2001 referred to the applicant's complaint against the respondent where the applicant had advised he had a back injury and that in 1996 had surgery to repair a prolapsed disc and have some disc removed. The applicant at the time of the complaint was in prison and indeed has been in prison since 1998. The doctors at Barwon Prison had advised that because of his back injury he should not sit for longer than 10-15 minutes and should not lift anything over 5 kilograms. In essence the Commission referred to the applicant's complaint as being one whereby the applicant alleges that the respondent failed to provide him with reasonable accommodation for his disability when transported between Port Phillip Prison and Barwon Prison. He also claimed that he was required to load and unload boxes without the aid of a trolley and that this aggravated his injury. He further claimed that he had requested accommodation for his disability but that the respondent had provided that accommodation.

3. Attached to the termination notice from the Commission are a number of documents including a handwritten letter to the Equal Opportunity Commission - Victoria from the applicant dated 18 August 2000, a typed "Statement of Complaint" dated 25 August 2000, a further handwritten complaint to the Equal Opportunity Commission Victoria dated 2nd April 2000 from the applicant and a typed Statement of Complaint dated 15 December 2000. At the hearing before me the applicant also provided by facsimile transmission further correspondence which he believed may be relevant namely a letter dated 30 August 2000 from the Equal Opportunity Commission Victoria to the applicant and a letter dated 9 January 2001 from the Complaint Handling Section of the Commission to the applicant.

4. The application to the Federal Court was transferred to the Federal Magistrates Court (the FMC) by order of Justice Finkelstein on

28 September 2001. When the matter was first listed before me on 29 October 2001 the solicitor for the respondent foreshadowed an application to dismiss the application for want of jurisdiction and accordingly I made orders directing the parties to file and serve an outline of submissions together with a list of authorities to be relied upon.

5. By application filed 21 November 2001 the respondent sought the following orders:

1. An order under Rule 13.09 that the application filed in the Federal Court (V346/01) on 24 May 2001 and transferred to the Federal Magistrates Service by order of the Federal Court made 28 September 2001 be wholly stayed or dismissed on the basis that:

(a) The application does not disclose a reasonable cause of action;

(b) The application is an abuse of process of the court.

By reason that the court does not have jurisdiction under the HREOC Act and/or there is no remedy or relief available to Mr Rainsford".

6. In support of its application the respondent filed and served an Outline of Submissions together with both a list and copies of authorities and relevant legislation.

7. Although the hearing of the respondent's application had been arranged to be in person with an appropriate gaol order forwarded to the prison authority the hearing was ultimately conducted by video link due to what was explained to me as an administrative problem which meant that the applicant was not transported to court for the hearing. As the hearing involved submissions and given that the applicant was in possession of the respondent's outline of submissions together with the supporting material I considered it appropriate to conduct the hearing by video link.

8. Mr D J Graham Solicitor General appeared with Mrs C Kenny for the respondent and submitted to the court that the application for relief against the State of Victoria under the HREOC Act should be dismissed on the grounds that the FMCA has no jurisdiction to determine the application. In the alternative it was submitted that as there is no remedy available to the applicant under the HREOC Act then the proceedings should be dismissed on the ground that it does not disclose a cause of action.

9. It was noted in the respondent's submissions that the FMCA is a court of limited jurisdiction. Reference was made to s 10 of the Federal Magistrates Act 1999 (the FM Act) which provides:

(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:

(b) by the application os section 15 C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.

(2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia."

10. It was submitted that the FMC only has jurisdiction in respect of matters which are the subject of a specific conferral of jurisdiction by an Act of the Commonwealth Parliament. It was said that only "a few such acts have, as yet conferred jurisdiction upon this court". I referred the Solicitor General to the Federal Magistrates (Consequential Amendments) Act 1999 and for the purpose of the present application Schedule 16 of that act which provided the appropriate amendments to the HREOC Act. The Act provides by schedules amendments to relevant legislation conferring specific jurisdiction on the FMC.

11. The respondent then compared the FMC jurisdiction with the jurisdiction of the Federal Court and submitted that s 19(1) of the Federal Court of Australia Act 1976 (Commonwealth) provided that the Federal Court has such original jurisdiction as is vested in it by the laws made by the Parliament. Jurisdiction has been conferred on the Federal Court by a large number of acts of the Commonwealth Parliament and significantly a broad conferral of jurisdiction upon the court is made by s 39B of the Judiciary Act 1903 (Commonwealth) and notably by 39B(1A)(c) which confers jurisdiction in matters arising under any laws made by the Commonwealth Parliament. It was submitted that the Federal Court also has accrued or attached jurisdiction. I noted in passing that the FMC under s 18 of the FM Act has associated jurisdiction and in the exercise of its jurisdiction particularly in the trade practices matters has accrued jurisdiction. It is noted that the FMC however has to have primary jurisdiction vested before it can then exercise jurisdiction which may be regarded as associated jurisdiction or accrued jurisdiction.

12. The respondent submitted that the FMC does not have an extension of its jurisdiction pursuant to s 39B of the Judiciary Act. The respondent further submitted that s 39B(1A)(c) of the Judiciary Act does not provide an additional source of jurisdiction in this instance either to the Federal Court or the FMC.

13. The key submission made by the respondent in the present case is that the HREOC Act does not have any relevant application to the Crown in right of the State of Victoria. That being so it is submitted that the statutory scheme for determining complaints provided by HREOC does not apply and the FMC has no jurisdiction to hear an application brought against the State of Victoria pursuant to s 46PO of the HREOC Act.

14. The Court was referred to s 6 of the HREOC Act which provides:

(1) This Act binds the Crown in right of the Commonwealth and of Norfolk Island, but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.

(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State or of Norfolk Island liable to be prosecuted for an offence".

15. It was submitted that based on the plain meaning of that section the HREOC Act does not apply to the Crown in right of the State of Victoria. In further support of that submission I was referred to s 30(2) of the HREOC Act which does "otherwise expressly provide" in relation to discrimination in the area of employment. Section 30(2) provides:

"30(2) This Division binds the Crown in right of a State".

16. The respondent submitted that as a matter of statutory interpretation the Crown in right of the State of Victoria is not subject to the provisions of the HREOC Act except in relation to unlawful discrimination in the area of employment. Consequently neither the procedure for reviewing nor the remedies available in respect of unlawful discrimination under the HREOC Act are available to the applicant in this proceeding. The respondent submits the only right created by the HREOC Act is to engage the process or enlist the mechanism created by the Act. If that right is removed it is submitted there is no justiciable controversy before the court (see Re East Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at paras 25-26 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ and at paras 75-79 per Kirby J. See also Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.)

17. Further it was submitted by the respondent that the absence of any available remedy to the applicant because of the operation of s 6 of the HREOC Act is sufficient for the court to summarily dismiss the application (see Bradken Consolidated v Broken Hill Pty Co Ltd [1979] HCA 15; (1978-9) 145 CLR 107.)

18. The applicant referred the court to s 12(1) of the DD Act and in particular the definition of "Australia" and particularly wanted the court to take note that the Act applies "throughout Australia and that Australia includes the external territories". He further referred to

s 12(7) and s 13(3) and (4). He noted in relation to s 13 that in the present case he had commenced his complaint by lodging it with the Equal Opportunity Commission Victoria and although it is clear that there are administrative arrangements for handling complaints by the State Commission and referral of those complaints where a claim is made under Commonwealth law to HREOC, the applicant then as I understood it submitted that the State of Victoria had subjected itself to the provisions of the HREOC Act by in part seeking to administer and/or at least refer complaints made under the Commonwealth Anti-Discrimination legislation including for the purpose of this application the DD Act.

19. It was submitted on behalf of the applicant that in the event that the court were to upheld a submission that it does not have jurisdiction then I should remit the application to the Victorian Civil and Administrative Tribunal (VCAT) or transfer the application back to the Federal Court.

20. On behalf of the respondent it was submitted that the court does not have power to remit the application to VCAT. There is no power of the FMC to remit an application pursuant to Commonwealth legislation to a State Court or Tribunal which does not have the power to administer the Commonwealth legislation. There is no specific provision which allows for a remission of an application in any event. It was further submitted that it would be pointless to transfer the matter back to the Federal Court as the submissions concerning the lack of jurisdiction based primarily on the application of s 6 of the HREOC Act also applies to the Federal Court which does not gain the benefit of extended jurisdiction under s 39B of the Judiciary Act in circumstances where a Commonwealth Act expressly excludes the jurisdiction of the court in considering the application of the HREOC Act to the State of Victoria.

21. In my view the submissions of the respondent are correct. It is clear that s 6 of the HREOC Act on a plain reading of that provision clearly provides that except as otherwise expressly provided by the Act it does not bind the Crown in right of State. The only express provision is s 30(2) of the HREOC Act and it is clear to me that if Parliament wished to provide that the State of Victoria was subject to the HREOC Act and the anti-discrimination legislation including the DD Act then Parliament could have clearly made an express provision to that effect. Of course such a provision would need to be constitutionally valid.

22. I am satisfied that the present application cannot be sustained for the reasons advanced by the respondent. The FMC does not have extended jurisdiction by virtue of s 39B of the Judiciary Act and in the circumstances I am satisfied further that the Federal Court does not have extended jurisdiction by virtue of that provision in circumstances where s 6 of the HREOC Act clearly provides that the Act does not bind the Crown in right of State except as otherwise expressly provided. It is clear that the present case is not one which would be regarded as a claim relating to equal opportunity in employment and hence the application must fail.

23. There is no power given to the FMC to remit an application of this kind to any State Court of Tribunal. Indeed any attempt to remit the application would be both beyond the power of this court and in any event would involve remitting an application which a State Court or Tribunal would not have power to decide. There is no delegated power to the State Tribunal or Court to hear applications under the HREOC Act which have been terminated by the commission.

24. As indicated it would be futile to transfer the matter back to the Federal Court although I am satisfied that in certain circumstances even where an application has been transferred to the FMC by the Federal Court it is possible for the FMC to exercise its power to transfer the matter back to the Federal Court. This may occur where there has been a change in circumstances concerning either the damages claimed or if other factors alter to the point where it is appropriate for other FMC to transfer the matter back to the Federal Court. In the present case however the submission concerning jurisdiction and the applicability of s 6 of the HREOC Act applies equally to the Federal Court as it does to the FMC and accordingly it would be a pointless exercise to transfer the matter to the Federal Court.

25. I do not regard s 12(1) of the DD Act as being relevant. Nor do I find any assistance is obtained by the applicant's reference to s 12(7) of the DD Act. If anything the reference by him to s 13(3) and 13(4) of the DD Act confirms the view that there is due deference to the laws of the State of Victoria and in my view that is consistent with the interpretation of s 6 of the HREOC Act which has been advanced by the respondent. Although correspondence relied upon the applicant provides evidence of the administrative arrangement between the Commonwealth and the State of Victoria in relation to claims made under the Commonwealth legislation it does not provide a basis upon which it could be said that this Court has jurisdiction to hear and determine complaints against the State of Victoria other than in relation to those areas were there was express provision which at present appears to be confined to the operation of s 30(2) the HREOC Act.

26. It is appropriate for this court in considering the application by the respondent pursuant to Rule 13.09 of the Federal Magistrates Court Rules to make an order pursuant to Rule 13.10 that the application be dismissed on the basis that there is no reasonable cause of action disclosed and/or that the proceeding is an abuse of process of the court.

27. In the circumstances I propose making an order that the application filed 10 May 2001 be dismissed.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM